Canadine & Ors v The Director of Public Prosecutions (DPP) [2007] EWHC 383 (Admin)

Case No CO/9882/2006[2007] EWHC 383 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 14 February 2007
Strand
London WC2
B E F O R E:
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
MR JUSTICE LLOYD JONES
TIMOTHY CANADINE
BARRY GARDINER
SIMON LIPMAN
RICHARD POMERANCE
MARK RAPLEY
DAVID TYSON
(CLAIMANTS)
-v-
THE DIRECTOR OF PUBLIC PROSECUTIONS
(DEFENDANT)
Computer-Aided Transcript of the Stenograph Notes of
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MR R SHARPE (instructed by Michael Demidecki London W9 2BA) appeared on behalf of the CLAIMANT
MR M MATHER (instructed by the Commissioner of Police for the City of London, Criminal Justice Unit, London EC4M 2NG) appeared on behalf of the DEFENDANT
The interested party, Marylebone Magistrates Court, was not represented
J U D G M E N T
Between
Canadine & OrsClaimantThe Director of Public Prosecutions (DPP)Defendant

THE PRESIDENT: I shall ask Lloyd Jones J to give the first judgment.

[2]MR JUSTICE LLOYD JONES: This is an appeal by way of case stated against the decision of District Judge Snow sitting at Marylebone Magistrates' Court on 25 July 2006. On various dates, between 29 June 2005 and 10 August 2005, informations were preferred by the Commissioner of Police for the City of London against the six appellants, that on various dates they had driven in excess of the 20 mph speed restriction imposed across Tower Bridge, London, contrary to section 88 of the Road Traffic Regulation Act 1964. It was agreed that the informations should be joined for the trial hearing.[3]At the trial it was accepted, on behalf of the appellants, that Transport for London had introduced a speed restriction zone in this area with a speed limit of 20 mph by order GLA 2003 No. 29, made on 21 October 2003, which came into force on 25 October 2003. However, it was contended on behalf of the appellants that at the material times there was not a legally enforceable speed restriction on Tower Bridge and that accordingly there was no case to answer. This submission was based on various grounds, all of which were rejected by the District Judge.[4]The only ground with which we are concerned is the submission that the terminal signs used at the entrance and exit points to the speed restriction area are not traffic signs within the meaning of section 64(1) of the Road Traffic Regulation Act 1984, as they do not conform to the regulations and have not been authorised by the Secretary of State. The district judge considered the documents lodged by the parties. He heard expert evidence for the prosecution and defence. He viewed the sites and the signs. He heard legal submissions on behalf of the prosecution and the defence.[5]He made the following findings of fact, and I omit those findings relevant only to the other grounds which are not advanced on this appeal. He concluded that. "(a) the appellants were driving in excess of 20 mph. (b) A terminal sign must conform to the specification of diagram 670. That diagram prescribes a circular sign, with a red border around a white circle, on which is printed in black numerals the maximum speed allowed within the restricted area. The terminal signs in this area had to be illuminated. As a consequence the material of the signs was designed to allow them to be translucent. To allow them to be lit internally lighting units were made to hold the signs and they were mounted in those units. As a consequence of that mounting there was a small, black lip surrounding the sign. Except on very close examination the casing around the sign is effectively invisible. The sign complies with Diagram 670 and is independent of its casing. The assertion that the casing is a border rendering the sign defective should be rejected."[6]At the request of the appellants the district judge has stated a case and has referred the following question for the opinion of the High Court: does the visibility of the housing around a terminal sign render it non prescribed within the meaning of section 64(1), Road Traffic Regulation Act 1984? On behalf of the appellants, Mr Richard Sharpe submits that there was no legally enforceable speed restriction in place on Tower Bridge at the relevant time because the terminal signs are non prescribed signs under the 1984 Act and, as such, are illegal.[7]Section 85(1), (2) and (4) of the Road Traffic Regulation Act 1984 provide:
"(1) For the purpose of securing that adequate guidance is given to drivers of motor vehicles as to whether any, and if so what, limit of speed is to be observed on any road, it shall be the duty of the Secretary of State in the case of a road for which he is the traffic authority, to erect and maintain the prescribed traffic signs in such positions as may be requisite for that purpose. (2) In the case of any other road it is the duty of the local traffic authority- (a) to erect and maintain the prescribed traffic signs in such positions as may be requisite in order to give effect to general or other directions given by the Secretary of State for the purpose mentioned in subsection (1) above, and (b) to alter or remove traffic signs as may be requisite in order to give effect to such directions, either in consequence of the making of an order by the Secretary of State or otherwise. ... (4) Where no such system of street or carriageway lighting as is mentioned in section 82(1) is provided on a road, but a limit of speed is to be observed on the road, a person shall not be convicted of driving a motor vehicle on the road at a speed exceeding the limit unless the limit is indicated by means of such traffic signs as are mentioned in subsection (1) or subsection (2) above."
Section 64(1) and (2) of that statute provide: 8. "64.—(1) In this Act ‘traffic sign’ means any object or device (whether fixed or portable) for conveying, to traffic on roads or any specified class of traffic, warnings, information, requirements, restrictions or prohibitions of any description— (a). specified by regulations made by the Ministers acting jointly, or. (b). authorised by the Secretary of State. 11. and any line or mark on a road for so conveying such warnings, information, requirements, restrictions or prohibitions. (2). Traffic signs shall be of the size, colour and type prescribed by regulations made as mentioned in subsection (1)(a) above except where the Secretary of State authorises the erection or retention of a sign of another character; and for the purposes of this subsection illumination, whether by lighting or by the use of reflectors or reflecting material, or the absence of such illumination, shall be part of the type or character of a sign."

Section 64(1) and (2) of that statute provide:

[8]The appellants submit that the effect of these provisions is that no motorist may be convicted of a speeding offence, other than where street lighting creates a 30 mph restriction, unless traffic signs are in place and the traffic signs must either conform with the prescription given by regulations or have been authorised specifically by the Secretary of State. It is common ground that there has been no separate authorisation by the Secretary of State in this case. Accordingly the only issue is whether the signs conformed with the prescription in the regulations.[9]The Traffic Signs Regulations and General Directions 2002, Direction 8(1)provides:
"Diagram 670 terminal signing shall be erected on each side of a carriageway at the entry point to a speed restriction to which the sign can be applied."
Regulation 11 states:
"Subject to the provisions of these Regulations, a sign for conveying information or a warning, requirement, restriction, prohibition or speed limit of the description specified under a diagram in Schedules 1 to 7, part II of schedule 10 and schedule 12 to traffic on roads shall be of the size, colour and type shown in the diagram."
[10]Diagram 670 consists of a circular sign with a red border around a white circle, on which is painted in black numerals the maximum speed allowed within the restricted area.[11]On behalf of the appellants, it is contended by Mr Sharpe that this prescription is not conformed with in the case of the signs of Tower Bridge because the casing which houses each sign's internal illumination is visible at the front of the sign, and effectively creates a black border around the sign itself. It is further said that the permitted variants to diagram 670 are listed in Schedule 16 Item 1 and do not include a black border.[12]Before this court the appellants submit that the entirety of the sign, including any surround, must be considered when determining whether or not a sign is prescribed. Mr Sharpe bases this submission first on the effect of section 64(2) of the Road Traffic Regulation Act, which he says is that any housing containing the illumination of the sign is to be considered part of the total character of the sign for the purpose of determining whether a sign is prescribed by the regulations. Secondly, Mr Sharpe says that the effect of Direction 42, Traffic Sign Regulations and General Directions 2002 is that the display of the sign against a background, which is not grey or yellow, is prohibited. In this regard Mr Sharpe also relies on Chapter 7 of the Traffic Signs Manual 2003.[13]On behalf of the respondent, Mr Nicholas Mather accepts that if the housing is properly to be considered a border or to be an integral part of the sign itself, it arguably fails to be a prescribed sign within section 64(1) and section 85(1) of the 1984 Act. However, he submits that the housing used in these signs is not an integral part of the sign and is independent of the sign itself. Moreover, he submits that in each case the housing is effectively invisible and does not form part of the indication given by the sign itself.[14]In their written submissions the appellants drew attention to the final words of section 64(2) of the 1984 Act which provided that:
"for the purposes of this subsection illumination, whether by lighting or by the use of reflectors or reflecting material, or the absence of such illumination, shall be part of the type or character of a sign."
[15]Mr Sharpe originally submitted that it followed that any housing containing the illumination of the sign is to be considered part of the type or character of the sign for the purpose of determining whether it conforms with the regulations. Accordingly it is not to be considered independent in this case, as the district judge concluded.[16]However, in his submissions today Mr Sharpe has not advanced that submission. I consider that that concession was rightly made. It is based, to my mind, on a misreading of the provision. The provision is concerned with the illuminated or non-illuminated state of the sign. It does not address the housing for the equipment intended to illuminate the sign.[17]Provision in relation to the container, enclosing apparatus for the illumination of the sign, is however made by Direction 42 of the Traffic Sign Regulations and General Directions 2002. That provides in relevant part:
"42-(1) The back of any sign shown in a diagram in Schedules 1 to 5,7, Part 11 of Schedule 10 or in Schedule 12, or prescribed by regulation 53, other than the sign shown in diagram 651,970 971, 972 973.2, 973.3, 2610, 2610.1, 2610.2, 7101.1, 7102,7103,7104 or 7105 shall be coloured- (a) black if the sign is mounted on the same post as that on which light signals prescribed by regulation 33(1)(or those signals as varied in accordance with regulation 34) or light signals prescribed by regulation 33(2) and regulation 35 are mounted; or (b) grey, black or in a non-reflective metallic finish in any other case ... (2) Paragraph (1) shall apply to the back of any backing board or other fitting provided for the assembly of such a sign as is referred to in paragraph (1)(including any container enclosing apparatus for the illumination of such a sign). ... (5) The front of any backing board for a sign mounted otherwise than as described in paragraph (1)(a) shall be coloured either grey or yellow. (6) A yellow backing board for a sign (except one for the sign shown in diagram 2402.1) shall be rectangular in shape. ... (9) In this direction 'backing board' in relation to a sign includes any background (except a wall to which the sign is affixed) against which the sign is displayed."
[18]This provision is the only one drawn to our attention which refers expressly to any container enclosing apparatus for the illumination of the sign. Its effect is that the back of the stipulated signs, including any container enclosing apparatus for illumination, shall be black if mounted on the same post as light signals, or grey, black or in a non-reflective metallic finish in any other case. In the present case the back of the container enclosing the illumination apparatus is covered black in accordance with the provisions.[19]The provision further requires that the front of any backing board for a sign mounted otherwise than on the same post as the light signals shall be coloured either grey or yellow and shall be rectangular in shape. In this regard I should draw attention to the definition of backing board in Direction 42:
"(9) In this direction 'backing board' in relation to a sign includes any background (except a wall to which the sign is affixed) against which the sign is displayed."
[20]Before us it is argued by Mr Sharpe that the housing of the illuminated apparatus was a backing board and did not comply with the regulations because it was black. To my mind this is an impossible submission. The lip created by the housing is clearly not a backing board. It is not a background against which the sign is displayed. I accept that the position might be different if there were a substantial surround, which was visible to road users, but here the district judge has found that the lip of the container of the apparatus is effectively invisible, save on close examination.[21]Mr Sharpe then asks rhetorically: why is it lawful to encapsulate a traffic sign within a black surround when to encapsulate it within an identical appearing backing board would render the sign non-prescribed? I am unable to accept the premise on which this question proceeds. I find it inconceivable that a backing board could have an identical appearance to the surround in the present case. The effect of the casing is to create the merest rim around the sign. The district judge found that, except on very close examination, the casing around the sign is effectively invisible. The two situations, are, to my mind, entirely distinct.[22]For the same reason I am unable to accept the submission of the appellants that to allow the black casing to appear as a rim around these signs could lead to confusion with signs which are required to have black borders. The effect, as found by the district judge, is that the rim would be effectively invisible. I conclude, therefore, that Direction 42 does not assist the appellants. Its application to the facts of the present case is limited to the requirement that any container enclosing apparatus for the illumination of the sign must be, in the circumstances with which we are concerned, grey, back or in a non-reflective metallic finish and the signs for Tower Bridge comply with that requirement.[23]The appellants also rely on a passage in Chapter 7 of the Traffic Signs Manual 2003. This is a manual published by the Department for Transport on signs and their use. It states at paragraph 14.19:
"To improve conspicuity against a complex or dark background, a sign may be mounted on either a grey or a yellow backing board (direction 42(5)). This board must not be provided with an additional black border."
I do not derive any assistance from this passage. As the manual makes clear, it is concerned with the mounting of signs on backing boards to improve conspicuity. That is not the case here. In any event, as I have already explained, the rim cannot be regarded as a backing board.[24]I therefore accept the submission on the part of the respondent that the housing used in these signs is not an integral part of the sign and is independent of the sign itself. The two are, to my mind, entirely distinct. I consider that the signs on Tower Bridge do comply with the relevant regulations.[25]However, I should also consider the position, if the appellants were correct in their submission that the road signs did not comply with the requirements of the regulations. Here I bear in mind the decision of this court in Davies v Heatley [1971] RTR 145, that there must be strict and complete compliance with the regulations governing the form of road signs. However, this does not mean that any deviation from the requirements of the regulations will lead inevitably to the conclusion that the signs were not prescribed signs and give rise to no legally enforceable restrictions.[26]A number of decisions of this court, while acknowledging the general rule stated in Davies v Heatley, have applied a de minimis exception to the rule. In Sharples v Blackmore [1973] RTR 249 this court held that the fact that the back of a road sign had been painted the wrong colour did not make a restricted road into a destricted road. May J, as then was, when delivering the first judgment observed that he did not intend, in any way, to detract from the authorities which lay down that where signs are erected and are in place on a road giving guidance or giving directions to drivers, they must in the respects in which they give that guidance, or give those directions, comply strictly with the requirements of the regulations. However, he considered the non-compliance of the rear of the sign to be wholly immaterial.[27]Similarly, in Cotterill v Chapman [1984] RTR 73, a decision which Mr Sharpe has very properly drawn to our attention, this Court concluded that a miniscule deviation of some 3 millimetres, in a line painted on the road did comply with the requirements. The departure from the standards set down in the regulations were so minor, that this court concluded that it should be disregarded by the application of the de minimis principle.[28]In the present case there was no question of any road user being misled or misinformed. The district judge has found that except on very close examination the casing around the sign is effectively invisible. In the light of that finding I consider that even if, contrary to my conclusion, the sign is to be regarded as not complying with the regulations, the deviation is so minor that on the authority of Sharp v Blackmoor and Cotterill v Chapman it should be disregarded.[29]For these reasons, despite the valiant submissions of Mr Sharpe, I should answer the question posed as follows: the visibility of the housing around the terminal sign does not render it non-prescribed within the meaning of section 64(1) Road Traffic Act 1984.[30]THE PRESIDENT: I agree with my Lord's analysis of the law and the relevant legal principles. This is an appeal by way of case stated from the decision of District Judge Snow. He plainly took a great deal of trouble with the case in order to address the issues raised in argument on behalf of the appellants. He visited the site and made his own judgment of the sign in question. He made an express finding of fact that, except on very close examination, the casing around the sign is effectively invisible.[31]My Lord's judgment has explained the significance of the casing and how it comes to be there. Stripped to essentials, the issue for decision is whether this sign, which clearly sets out a 20 mph speed limit in accordance with regulations, is flawed because of a very narrow lip visible on very close examination, but effectively invisible to the motorist driving on Tower Bridge. In this context a flaw which is invisible, or virtually so, falls within the rule that the law is not usually troubled by trivialities. It is something of a relief to be able to conclude that an appeal, so entirely based on technicality and so utterly devoid of merit, should be dismissed.[32]MR MATHER: The only other matter is costs. Can I hand up a schedule? It is agreed between us.

THE PRESIDENT: Mr Sharpe, what do you say about the principle?

[34]MR SHARPE: I agree with the schedule and I do not think I can say much on it, to be honest.[35]THE PRESIDENT: The appeal will be dismissed with costs. This is the entire schedule of costs?[36]MR MATHER: It is.[37]THE PRESIDENT: The Crown's costs will be assessed at £1,500. Thank you very much, Mr Sharpe, for an interesting argument.

Cited in 3 later judgments